Muir Mills vs Presiding Officer, Labour Court (IV) and Others

R.R.K. Trivedi, J.—In both the aforesaid writ petitions, Petitioner and Respondent No. 3 in the first petition and Respondent No. 4 in the second petition are common. Both the writ petitions thus can be decided by a common order against which learned counsel for the parties have no objection. Writ Petition No. 1351 of 1996 shall be the leading case.

Facts giving rise to the aforesaid two petitions are that Respondent No. 3 Ram Singh raised industrial dispute with regard to termination of his employment from the Petitioner Mill with effect from 1.11.1991. The dispute was referred to the Labour Court by the State Government vide order dated 22.9.1993, u/s 4K of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the Act). In the Labour Court this case was registered as Adjudication Case No. 151 of 1993. Before the Labour Court both the parties appeared and filed written statement. Case of Respondent No. 3 was that on knowing that in the Petitioner Mill there is a need of some workmen, he made an application in the month of March, 1990 for being employed. On 1.5.1990, he was employed in the Mill under some contractor. Since then Respondent No. 3 continuously worked on the post though contractors used to change. His attendance was recorded in Form 12 and salary was paid to him by the contractor or his clerk-cum-cashier through voucher. After fourteen months he was made member of the E.S.I. and Provident Fund. He discharged the duties of providing drinking water during the summer and in other season work was taken from him in other departments of the Mill. When Respondent No. 3 raised a demand for payment of regular wages like other employees, he was terminated from service by an oral order from 1.11.1991 in violation of the provisions of Section 6N of the Act. Respondent No. 3 claimed reinstatement on the post with full back wages.

Petitioner''s case, on the other hand, was that Respondent No. 3 was not employed in the Mill on 31.10.1991 or before that date and the order of reference is wholly erroneous and liable to be set aside. Respondent No. 3 was never under employment of the Mill and there was no question of termination of his services. The State Government has made reference without application of mind. Respondent No. 3 was never employed by the management of the Mill and there is no relationship of employer and employee between Petitioner and Respondent No. 3 and alleged termination has not given rise to any industrial dispute. Under the provisions of the Act, Respondent No. 3 is not a workman. In this* case Petitioner has been wrongly impleaded as a party. Copy of the written statement has been filed as Annexure 1 to the writ petition. Both Petitioner and Respondent No. 3 adduced oral and documentary evidence. The Labour Court after hearing parties gave award dated 4.9.1995 in favour of Respondent No. 3 and directed reinstatement treating him as employee of the Mill with proper wages and other facilities and also awarded 50 per cent of the back wages during the period Respondent No. 3 was out of Job. Aggrieved by this award Petitioner has filed Writ Petition No. 1351 of 1996. In this petition, counter and rejoinder-affidavits have been exchanged between the parties.

In pursuance of the aforesaid award dated 4.9.1995, workman Ram Singh filed an application u/s 6H(1) of the Act for enforcing the award. On this application a notice was issued to Petitioner. Petitioner filed objection that against the impugned award writ petition has been filed in this court in which interim order dated 1.3.1996 has been passed and the operation of the award has been stayed upto 31.3.1996. However, as the extension of the interim order passed by this Court after 31.3.1996 could not be filed by Petitioner, Respondent No. 1 Deputy Labour Commissioner, passed order dated 4.7.1996 u/s 6H(1) of the Act for recovery of the amount of Rs. 32,764.10 p. from Petitioner as land revenue arrears. On the basis of the aforesaid order citation dated 24.8.1996 has been served on the Petitioner for recovery of the amount of Rs. 56,921.27 p. as land revenue arrears which includes the amount of Rs. 32,764.10 p. The remaining amount is in respect of some other case. Aggrieved by the order dated 4.7.1996 and the citation dated 24.8.1996 Petitioner has filed Writ Petition No. 30254 of 1996.

I have heard Shri V.B. Singh, learned counsel appearing for Petitioner and Shri B. N. Singh for Respondent Ram Singh and learned standing counsel for other Respondents.

Shri V. B. Singh, learned counsel for Petitioner, has submitted that Respondent No. 3 Ram Singh was not an employee of the Mill and there was no relationship of employer and employee and thus there was no question of any industrial dispute. The reference was illegally made by the State Government to the Labour Court, Respondent No. 3 was employed by a contractor and under the provisions of the Contract Labour (Regulation and Abolition) Act, 1971, Respondent No. 3 could not be treated as an employee of the Mill nor could he demand treatment at par with other regular employees of the Mill. If there was violation of the provisions of the Act of 1971, the Mill could at the most be punished for the violation. It has been submitted that the Labour Court ignoring the correct legal position has illegally given the award in favour of Respondent No. 3. As he was never employed by the Management of the Mill, he could neither be reinstated nor could be awarded back wages.

With regard to second petition, learned counsel for Petitioner has submitted that the Dy. Labour Commissioner was not legally justified in passing the impugned order dated 4.7.1996 for recovery of the amount as land revenue arrears in view of the fact that the stay order was granted by this Court in Writ Petition No. 1351 of 1996 and the application for extension of the stay order remained pending and the matter was subjudice. It has also been submitted the Petitioner raised an objection that the amount due cannot be realised in view of Section 22 of Sick Industrial Companies (Special Provisions) Act, 1985 and as rehabilitation proceedings are pending before the B.I.F.R. However, the Deputy Labour Commissioner passed the order ignoring both the questions in an arbitrary manner.

Learned counsel for the Petitioner has placed reliance in the following cases : Mathura Refinery Mazdoor Sangh v. Indian 071 Corporation Ltd. and Anr. (1991) 62 FLR 423 ; Dena Nath and others Vs. National Fertilisers Ltd. and others, ; Association of Chemical Wrokers, Bombay Vs. Sh. A.L. Alaspurkar and others, ; Gujarat Electricity Board Thermal Power Station v. Hind Mazdoor Sahha and Ors. 1995 Lab IC 2207 : 1995 LLR 552 and an unreported judgment of a learned single Judge of this Court dated 6.11.1996 in Writ Petition No. 15399 of 1988 M/s. Indian Explosives Ltd. v. State of U.P. and Ors. and Ors. connected petitions.

Shri B. N. Singh learned counsel for Respondent No. 3, submitted that from the oral and documentary evidence adduced by Respondent No. 3, it has been proved that Respondent No. 3 in fact was employed by Petitioner on 1.5.1990. However, he was illegally shown to have been employed by a contractor though In the written statement filed, name of the contractor and other particulars regarding licence and registration, etc. were not mentioned. The Labour Court on the basis of the evidence filed by Respondent No. 3 has recorded a finding of fact that he was employed by Petitioner and no contractor was involved at any point of time. It has been further submitted that the labour contract system was abolished by the State Government in exercise of power u/s 10 of the Contract Labour Act vide Notification dated 24.4.1990. Copy of the Notification has been filed as Annexure 1 to the counter-affidavit. It is not disputed that Respondent No. 3 was employed on 1.5.1990, i.e., after the aforesaid Notification when the contract labour was already abolished. The case of Petitioner thus cannot be believed. It has also been submitted that Respondent No. 3 has worked in the Mill is not disputed. On the other hand, an admission has been made by the witnesses examined by Petitioner that Respondent No. 3 was employed in the Mill through contractor. Respondent No. 3 in Oral evidence specifically claimed that he was employed for bobin cleaning which is one of the process performed by the Respondent workman. He was also discharging the duty of providing drinking water during summer season. After working for about 14 months he was made member of the E.S.I. and P. F. Scheme, cards were issued which bore signatures of the Welfare Officer of the Petitioner Mill. Thus, on the basis of the material on record, the Labour Court has rightly recorded a finding of fact that Respondent No. 3 was regularly employed and his services have been terminated in contravention of Section 6N of the Act.

With regard to second petition, it has been submitted that the interim order dated 1.3.1996 was not extended beyond 31.3.1996 and as the amount was not paid in pursuance of the award given in favour of Respondent No. 3, the Deputy Labour Commissioner rightly passed the order dated 4.7.1996 for recovery of the amount as land revenue arrears. The order and the citation do not suffer from any error of law. Payment of wages of the labour cannot be denied on the basis of the provisions of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1995, and on the basis of the fact that rehabilitation proceedings are pending before the Board for Industrial and Financial Reconstruction (B.I.F.R.).

Learned counsel for Respondents, Shri B. N. Singh, has placed reliance in case of Gujarat Electricity Board Thermal Power Station Okai v. Hind Mazdoor Sabha and Ors. (supra); M/s. Basti Sugar Mills Ltd v. Ram Ujagar 1963 (7) FIR 253 and Indian Explosives Ltd. v. State of U.P. and Ors. 1980 (4) FLR 407.

I have carefully considered the submissions of the learned counsel for the parties and perused the impugned award. The Labour Court has examined the question as to whether Respondent No. 3 was employed by a contractor or by Mill and has recorded a finding of fact that Respondent No. 3 was employed by the management of the Petitioner Mill. In my opinion, this finding does not suffer from any legal infirmity in the absence of specific pleading by Petitioner in the written statement and a proof in support thereof as to which contractor employed Respondent No. 3. A perusal of the written statement filed by Petitioner, which is Annexure 1 to the writ petition, shows that there is total absence of averment in this regard. It contained only flat denial that Respondent No. 3 is not employee of Petitioner. Petitioner examined one P. K. Bisaria who stated that name of Respondent No. 3 is not mentioned in the attendance register of 1991 and he was not issued the gate-pass and the slip of pay. In his cross-examination he was put to question regarding E.S.I. Card and after looking to the card, he said that this is a card from the Mill and it bears the seal of the Mill but he is not in a position to whether it was issued by the Mill or not. He did not disclose the name of the contractor. Thus, no evidence was adduced about the engagement of Respondent No. 3 by any contractor. When Respondent No. 3 was examined as a witness, a suggestion was made to him that he was employed by M/s. Nikhil Enterprises though no such case was taken up in the written statement or in the rejoinder or in the statement of the witness examined on oath. In these facts and circumstances, the Labour Court was perfectly Justified in recording a finding that Respondent No. 3 was employed by Petitioner Mill and he was terminated from service illegally and in contravention of Section 6N of the Act.

On the other hand, Respondent No. 3 filed various documents and also gave his statement on oath with a positive averment that Petitioner was employed by the management and the documents filed by him fully established that he worked in the Mill in the capacity he stated on oath. The finding on the Labour Court is thus based on material on record and cannot be questioned in the present proceedings under Article 226 of the Constitution.

There is another reason for not accepting the case of Petitioner that Respondent No. 3 was employed by any contractor. Along with counter-affidavit, Respondent No. 3 has filed a copy of the notification dated 24.4.1990 by which the State Government in exercise of its power u/s 10(1) of the Contract Labour (Regulation and Abolition) Act, 1971 has prohibited the employment of contract labour in the Textile Mills. The Petitioner in rejoinder affidavit has not disputed the existence of this Notification but in Para. 6 of the rejoinder-affidavit, it has been stated that the Notification has been challenged in writ petition in this Court and the operation has been stayed. However, it does not appear from Para. 6 that the stay order has been granted in favour of Petitioner. In the circumstances, the benefit cannot be claimed on basis of the stay order passed in writ petition filed by some other party. In view of the Notification dated 24.4.1990, the employment could not be through contractor and for this reason also, the case set up by the Petitioner cannot be accepted. As the Labour Court he found as a matter of fact that Respondent No. 3 was employed by Petitioner Mill, which finding is based on evidence on record, the cases cited by the counsel for the Petitioner have no application in the present case. The Labour Court was fully competent to decide the dispute and the award given by it does not suffer from any legal infirmity. As the first petition is dismissed, the order passed by the Dy. Labour Commissioner dated 4.7.1996 for realisation of the amount from Petitioner cannot be held to be illegal and realisation of the wages of the workman cannot be resisted on the basis of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985. This Court has already taken the view in this regard which has been confirmed by Hon''ble Supreme Court. In the circumstances, second petition has also no merit.

For the reasons stated above, both the petitions are dismissed. However, there will be no order as to costs.